Doubt, benefit of the doubt, reasonable doubt. These are words embedded in the DNA of all defense lawyers. Whether championing a client’s case or reading a salacious story in the press, doubt is always front of mind. Defense lawyers are trained not to prejudge, not to form opinions without knowledge of all the facts, and without testing the evidence. And since facts can get in the way of a good story, it’s impulsive to accept as accurate and true what is reported in the news without question. Occasionally, however, there comes an article that so shocks the conscience that it’s too difficult not to take it at face value, or muster the kind of skepticism that is our professional default.
Such is a story reported about the first and former International Criminal Court (ICC) Prosecutor Luis Moreno Ocampo’s seedy (and greedy) conduct involving Hassan Tatanaki – a client who forked over USD $750,000 to Moreno Ocampo for what Moreno Ocampo characterized as “consultancy services” on the use of international law in reducing the ongoing violence and securing peace in Libya.
Moreno Ocampo’s original contract was for a USD $3,000,000 retainer plus a USD $5,000 per day rate. Considering the purpose of the retainer, the amount of the retainer, and the lawyer so retained, Moreno Ocampo’s version of what he was retained to do for Tatanaki fails the laugh test.1The laugh test asks whether an explanation or assertion can be made without eliciting a derisive snort or outright laughter at it ludicrousness. Often by the very person offering the assertion.
Moreno Ocampo demonstrated his incompetence and lack of lawyering skills when cross-examining the Kenyan President Uhuru Kenyatta during the confirmation proceedings in the case against Mr. Kenyatta for crimes against humanity. This is the same person whose claim to fame before coming to the ICC was, among other things, being a reality TV-host in the mold of Judge Judy (a reality court TV star who adjudicates real-life small claim disputes in a simulated courtroom). So, what is it that Moreno Ocampo brings to the table to earn such a hefty fee for effectively selling fog – other than his name, connections, and a perceived ability to influence and manipulate ICC staff?
Considering the facts as reported, if correct, Moreno Ocampo shamelessly peddled his influence as the ex-ICC Prosecutor and in the process seriously crossed over some ethical lines. Maybe there is a lot more to this story than what has been reported. Maybe. Moreno Ocampo deserves the presumption of innocence even if he was less willing to afford it to those he presumed corrupt and guilty. As one former ICC prosecutor told journalist James Verini of The New York Times, Moreno Ocampo “would see the leader of a state and say: ‘There must be evidence out there. Go get it for me.’” Is it any wonder then that some African heads of states have misgivings of the ICC’s integrity as a fair and impartial judicial institution? (Here and here).
In any event, there is a need for a full and transparent investigation. If any ICC staff were involved in assisting Moreno Ocampo on the sly, and in the process, interfered with the work of the ICC Prosecutor, heads should roll. Given Moreno Ocampo’s ignominious tenure as the first ICC Prosecutor, and the mess he left behind for his successor, Fatou Bensouda, to clean up, the ICC needs to get ahead of this story. Moreno Ocampo should not be spared; he should be treated just as any other lawyer would be treated under the circumstances. Article 70 certainly comes to mind. But let’s not prejudge.
Be whatever it may, here are some of the operative facts as reported. You be the judge of Moreno Ocampo: hubris abandoned or victim of misunderstood circumstantial evidence?
- After leaving the post of the ICC Prosecutor, Moreno Ocampo established a consultancy agency that develops “tailored strategies to manage complex conflicts with transnational dimensions.”
- In April 2015, Moreno Ocampo entered into a contract worth USD $3,000,000 over three years, and USD $5,000 a day for “consultancy services” to advise a Libyan oil billionaire, Hassan Tatanaki.
- A former ICC Office of the Prosecutor (OTP) Staff Member in the Jurisdiction, Complementarity and Cooperation Division passed information to Moreno Ocampo that Tatanaki was being monitored by the ICC investigators for links to alleged war crimes. She reportedly outlined two allegations identified by the investigators:
(1) Inciting war crimes, based on an incident when General Khalifa Haftar, head of the Libyan National Army (LNA), appeared on a television station owned by Tatanaki making threats to those who refused to join the LNA’s side;
(2) Backing the regime, based on an intercepted phone conversation from 2011, in which (if genuine) Saif al-Islam Gaddafi appears to believe that Tatanaki remained loyal to the regime and had not defected.
- Moreno Ocampo informed his client Tatanaki that he was being watched by the ICC investigators and suggested “to develop a comprehensive plan to ensure that [Tatanaki] and the forces he is supporting are not the target of ICC prosecutions.”
- In June 2015, Tatanaki and his staff met with Moreno Ocampo and two ICC staff members during a trip to The Hague.
- An OTP Public Information Officer was hired to prepare public relations material for Tatanaki, including a statement setting out a humanitarian message to the Libyan people, rewriting Tatanaki’s Wikipedia biography, and editing video clips.
- After three months, Tatanaki terminated his contract with Moreno Ocampo, who still received USD $750,000 for “consultancy services.”
There is more to the story. The documents obtained allege that Moreno Ocampo owned offshore bank accounts while he was the ICC Prosecutor, and that over a course of several months after he left the ICC, USD $140,000 was transferred from the offshore accounts to Moreno Ocampo’s Dutch bank account. When asked by journalists about his offshore banking activity, Ocampo claimed that “offshore companies are not illegal” and denied avoiding any taxes, or taking money or bribes. Perhaps. Though who could fault curious minds from wondering why Moreno Ocampo would set up companies in Panama, British Virgin Islands, and other tax heavens, and transfer considerable amounts of money through Swiss bank accounts?
Whether or not there was any criminal activity behind these transactions, Moreno Ocampo would not be covered by privileges and immunities accorded to ICC staff since none of this activity was performed in his official capacity. See Article 48 of the Rome Statute. Moreno Ocampo may wish to consider lawyering up, and fast. And, for what it’s worth, he would be well advised to be circumspect in his explanations, since they could come back to haunt him in any future criminal proceedings.
Setting aside any alleged criminal activity Moreno Ocampo may have been involved in when he was the ICC Prosecutor and thereafter, here are some ethical issues concerning the Tatanaki affair that merit reflection:
- “Corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties” by inducing the ICC staff to assist him in his consultancy, who may still be under his “shadow”;2See here discussing Moreno Ocampo’s concept that part of his raison d’être was to “send a message” and spread “the shadow of the court”. See also Article 70(1)(d) of the Rome Statute.
- Breaching the duty of confidentiality by disclosing confidential information relating to the ongoing investigations;3See ICC Code of Conduct for the Office of the Prosecutor, Chapter 2, Section 7.
- Having a conflict of interest – Moreno Ocampo was investigating Saif al-Islam Gaddafi and had him charged. As reported, the ICC investigators were monitoring his client Tatanaki for any links to the regime and especially Saif al-Islam.4See ICC Code of Conduct for the Office of the Prosecutor, Chapter 2, Section 9.
Sticking with the ethical issues involved, lawyers in Argentina are bound by the Attorneys’ Professional Ethics Regulation of the Argentine Federation of Bar Associations and the Buenos Aires Bar Association’s Code of Ethics, which require lawyers to respect professional secrecy, refrain from abusing their position of authority, and avoid even the appearance of an attitude that can be interpreted as taking advantage of any political influence or any other exceptional situation. Though these codes do not have extraterritorial effect, Ocampo assuredly would have been aware of these ethical principles.
Also, Moreno Ocampo should know, being the ICC Prosecutor, that the ICC Code of Conduct for the Office of the Prosecutor requires members of the OTP to:
- “uphold the highest standard of confidentiality”;
- “not to disclose any privileged material or any material deemed confidential by the Court”; and
- “abstain from any conduct which may, directly or indirectly, be in conflict with the discharge of their official duties during terms of service or may compromise the independence and trust reposed in the Office following separation of service.”5ICC Code of Conduct for the Office of the Prosecutor, Chapter 2, Section 7, paras. 32, 33; Section 9, para. 42.
And let’s not forget the ICC Code of Professional Conduct for Counsel. Counsel who act on behalf of clients are obliged to ensure that their actions “are not prejudicial to the ongoing proceedings and do not bring the Court into disrepute.”6See Article 24 of the ICC Code of Professional Conduct for Counsel. Even though the Argentine code does not have extraterritorial effect, lawyers practicing before the ICC are expected to conduct themselves in accordance with the ethical principles enshrined in their domestic codes of professional conduct. Doing anything that might compromise their bar license – even if in relation to the ICC or some other tribunal – is reckless and perilous.
From what is reported, Moreno Ocampo was acting as counsel on behalf of a client who apparently was being investigated by the ICC Prosecutor in relation to the situation in Libya. Arguably, Moreno Ocampo was representing Tatanaki in a matter before the ICC, even if Tatanaki was at the periphery of an ICC investigation. Moreno Ocampo’s mission, as it seems, was to ensure that the OTP would not pursue Tatanaki, thus exposing him to potential charges and prosecution at the ICC. However Moreno Ocampo may slice and dice the facts, again, assuming that what is reported is correct, it boggles the mind that he would be in contact with and be engaging the support of ICC staff with whom he had previous working relations to assist in white-washing Tatanaki’s image, without realizing that his conduct could fall under the ICC Code of Professional Conduct for Counsel.
No doubt, Moreno Ocampo has explanations for his conduct, which, in due time, he will likely share with those who are currently looking into his affairs with Tatanaki, as well as with those who are investigating his offshore bank accounts. Their application of the laugh test to those explanations will not be so amusing.
I’ll stop here.
This saga is far from over for The Talented Mr. Moreno Ocampo.
|↑1||The laugh test asks whether an explanation or assertion can be made without eliciting a derisive snort or outright laughter at it ludicrousness. Often by the very person offering the assertion.|
|↑2||See here discussing Moreno Ocampo’s concept that part of his raison d’être was to “send a message” and spread “the shadow of the court”. See also Article 70(1)(d) of the Rome Statute.|
|↑3||See ICC Code of Conduct for the Office of the Prosecutor, Chapter 2, Section 7.|
|↑4||See ICC Code of Conduct for the Office of the Prosecutor, Chapter 2, Section 9.|
|↑5||ICC Code of Conduct for the Office of the Prosecutor, Chapter 2, Section 7, paras. 32, 33; Section 9, para. 42.|
|↑6||See Article 24 of the ICC Code of Professional Conduct for Counsel.|